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ANALYSIS OF AUGUST 11, 2009 CAV OPINIONS

[Posted August 12, 2009] The Court of Appeals has handed down five published opinions in a variety of case areas. Two of the cases implicate the threshold question of standing.

Administrative law
Alan and Lois Biddison live on Mathews County land that has been in the family for many, many generations – for “as long as records have been kept” in the county, according to Mrs. Biddison. The five-acre property features a significant frontage on a body of water called Milford Haven, which eventually stretches out into the Chesapeake Bay.

The Biddisons weren’t the only ones who appreciated the view; the owners of the neighboring parcel built a marina, and in 2007 applied for a VMRC permit to create new piers and slips, to dredge 3,700 cubic yards from the bottom lands, and to deposit the spoil material somewhat inland from the shore. The plans for the spoil site called for water runoff to return to Milford Haven by means of a ditch that divided the marina’s property from the Biddisons’.

Trouble ensued, as it usually does before appellate opinions surfaced. After the dredging, boats form the marina began to skim the Biddisons’ beach while headed out to the bay. That produced a significant shoreline wash, and prompted the owners to curtail the use of their property for swimming. And the water running downstream from the spoil site evidently threatened to overwhelm the boundary ditch. The Biddisons accordingly opposed the VMRC-permit request.

The commission issued the permit anyway, so the Biddisons appealed to circuit court. There, they met with unexpected failure when the trial court ruled that they weren’t aggrieved parties who are entitled to appeal. The court dismissed their appeal. Yesterday, in Biddison v. VMRC, the Court of Appeals reversed and reinstated the case. It holds that an adjoining landowner is precisely the sort of interested party that the General Assembly had in mind when it empowered aggrieved parties to appeal. While the court expresses no views as to the ultimate merits of the case, it holds that the conditions alleged by the Biddisons were sufficient to grant them standing to appeal, since the marina’s activities affected their riparian rights. That gives them “an immediate, pecuniary and substantial interest in the litigation.”

Domestic relations
Another standing issue arises in the domestic relations context. This one implicates the most recent amendment to the Constitution of Virginia. The case is Damon v. York.

Mother and father became – well, a mother and a father in 1996 when their daughter was born. Connubial bliss proved all too short-lived, however, and the marriage ended in divorce four years later. Three years after that, mother furnished a possible explanation for the demise of the union when she traveled to Canada in order to get a legal same-sex marriage. You will understand that she was not able to procure one of those around here.

Since the mother had custody of the little girl, the new marriage gave the child a somewhat-unorthodox step-parent arrangement. This arrangement, too, proved less than durable; the couple separated not long after the Canadian marriage. The girl shared a household with her step-mother for a total of 21 months, including about a year before the Canadian trip.

When this union fell apart, the child’s father and maternal grandmother (both of whom felt that they had been alienated form the child by the stepmom) sought custody in JDR Court. The judge agreed, and specifically ordered that stepmom was not to have any contact whatsoever with the little girl. Stepmom obeyed this directive and did not seek contact with the girl, whom she regarded as her step-daughter. But in 2006, she sought an order of visitation from the same JDR Court.

The court decided that, under Virginia law, stepmom was not a “person with a legitimate interest” in the child, so it refused the request for visitation. The circuit court agreed, after hearing testimony about the nature of the child’s relationship with stepmom.

The Court of Appeals affirms, noting that art. I, §15-A of the Constitution bars the recognition of same-sex marriages. That deprived stepmom of the opportunity to claim a step-parent’s rights with regard to visitation. The court then analyzes whether stepmom fits within the status of a “functional equivalent of” a statutory category for standing. It rules that the trial court made the correct ruling here, too. Evaluating the conflicting evidence about the household (mother painted a picture of strife and tension, while stepmom contended things were much more mellow), the trial court was permitted to believe mother’s version over stepmom’s, so the latter’s status was essentially the same as a friend of the family.

Workers’ compensation
The court takes up the sad case of Clifton v. Clifton Cable Contracting, in which the commission had denied survivor’s benefits because no one was able to show whether the death arose out of and in the course of the employment. The decedent and his wife owned the contracting company, and he alone owned his bike. One Sunday evening he went out for a ride. During the ride, he was involved in a collision. A firefighter came to the scene and found him “alive but barely so”; he died half an hour later.

His widow filed a claim for death benefits, claiming that the decedent had led her to believe that he was going to deliver some billing statements to the company’s bookkeeper. If true, that makes it a work-related trip, and therefore compensable.

The problem is that there was no corroboration at all of this less-than-definitive assertion. The bookkeeper didn’t testify that the decedent was expected to drop by. The widow acknowledged that the decedent didn’t usually ride his motorcycle on business matters. The commission ultimately ruled that the widow had failed to meet her burden of showing that the death arose out of and in the course of the employment.

The Court of Appeals affirms, finding no evidentiary support for the widow’s thesis other than conjecture. It notes that there is nothing in the record to indicate how the collision happened, or whether the decedent had decided to go for a joyride on the spur of the moment. There was, it observes, no documentary evidence to support the widow’s claim, so it’s impossible for the court to say that the commission incorrectly found that she had not met her burden of persuasion.

Criminal law
As an appellate lawyer, I always cringe just a little when I read a sentence like this one in the introductory paragraph of an appellate opinion, such as Brittle v. Commonwealth: “Because Brittle’s questions presented are procedurally defaulted, we affirm his conviction.” I expect to hear ominous background music when I see words like that. Procedural defaults are the bane of appellate practice; they are the primary reason why many trial lawyers absolutely hate going into appellate courts.

They shouldn’t hate it; appellate practice is extraordinarily rewarding and intellectually challenging. In this appeal, a very capable appellate advocate (my friend Jane Chittom, the Appellate Defender for the Commonwealth) confronted the challenge of appealing an issue that clearly had not been raised at trial, in violation of Rule 5A:18.

And yet Jane got a writ; a rare victory in a criminal appeal. She chose to grab for one of the two thin lifelines in the contemporaneous objection rule. The first, “for good cause shown,” wasn’t helpful, but the other one – “to enable the Court of Appeals to attain the ends of justice” – just might do the trick.

Brittle was convicted of a third-offense petit larceny. The first two offenses are misdemeanors, but by the time you get to #3, you’re up in the land of felonies. At trial, the prosecutor offered certified copies of not two but three priors; one in 2005 and the other two from 1997. The two copies from ’97 were demonstrably inadmissible because of minor but fatal defects (such as the absence of the judge’s signature on one of the copies), but Brittle’s trial lawyer evidently neglected to object. At the close of the evidence, the same lawyer challenged the sufficiency, but made no mention of the infirmities in the copies.

And that, my loyal readers, is a waiver. As we all know, in order to preserve an issue like that for appellate review, it must be timely raised in the trial court, and the trial lawyer didn’t do that. Now, on to that ends-of-justice exception.

This is a very important opinion for appellate lawyers, in that it contains a detailed explication of the ends-of-justice exception in criminal cases. The court notes that there are two components to the rule – that the trial court made an error, and “that a grave or manifest injustice will occur or the appellant will be denied essential rights.”

That language isn’t exactly a detailed recipe for easy legal analysis, but it does illustrate one point well: There has to be more than simply a demonstrable error below. Otherwise, every appeal would permit invocation of the exception, and there would be nothing left of the contemporaneous objection rule.

The court examines prior caselaw on this exception, and comes up with several helpful criteria. The appellant has to prove more than just that the prosecution failed to prove an element of the offense. Manifest injustice includes convicting someone of conduct that isn’t an offense at all; it also includes a case in which the trial court instructed the jury on three of the necessary elements of the offense, but not the fourth. This is a different animal from the usual sufficiency analysis; the court is looking for things like evidence of actual innocence in the record. Under such circumstances, an appellant might expect a review on the merits of his otherwise-defaulted arguments.

That doesn’t happen here. The defects in the copies didn’t render Brittle actually innocent. Indeed, there was other evidence, albeit indirect, in the record to support those convictions. (In the 2005 conviction, Brittles pleaded guilty to second-offense larceny. That wouldn’t cut it in a sufficiency analysis, but in this context, it helps to defeat Brittle’s claim, since it’s a judicial admission that he has a prior conviction.) In the end, the court declines to apply the exception, and affirms the conviction because Brittle’s objections to the conviction records have been (cue the ominous music) procedurally defaulted.